Monday, April 18, 2011

Close Windows, Crank Up the Air: Driver Can Be Asked to Prep Car for Sniff

At an Illinois traffic stop, a police officer told the driver to roll up her truck’s windows and turn the ventilation system’s blowers on high before a second officer conducted a canine sniff of the exterior of the truck. The dog alerted on both doors of the truck and a subsequent search found methamphetamine. The circuit court of Adams County granted a motion to suppress, but the appellate court reversed and the Supreme Court of Illinois affirmed. Thus, the officer’s actions in ordering the driver to close the windows and turn up the ventilation system’s blowers was held, in an opinion written by Justice Karmeier, not to constitute an unreasonable search under the Fourth Amendment.

The police had received information that the defendant was a methamphetamine user and an officer and staked out her apartment. When she was seen leaving the apartment with a man carrying white trash bags that were put in the back of the truck, the officer, Tyler, radioed a canine officer that he intended to make a traffic stop and wanted a dog sniff conducted during the stop. Officer Tyler made the stop in a gas station, explaining to the driver, Cheryl Bartelt, that she had parked too long on the sidewalk in front of her apartment. While he was conducting a computer check on Bartelt’s driver’s license and insurance information, Officer Kent arrived with his narcotics detection dog, Max.

Officer Kent followed the protocols of the Illinois State Police, which include a set-up procedure in which the driver is told to turn off the engine, turn the key on auxiliary, turn the blowers on high, roll up the windows and close the doors. The court then described the sniff procedure:

“Officer Kent begins a dog sniff by walking the dog parallel to the vehicle, beginning at the front and proceeding counterclockwise for two passes. The dog signals an alert by turning perpendicular to the vehicle. In addition, the dog's breathing will change, and his sniffing will intensify or become more rapid. Finally, the dog will put a paw out, look at the handler, and start barking. Probable cause is obtained through a dog's positive alert.”

The alert occurred before Officer Tyler even began writing the ticket. Tyler told the defendant and her passenger to exit the truck and obtained consent to search their persons, but nothing was found. A search of the truck revealed a bag containing a digital scale with white powder residue, several burnt pieces of tin foil, and a pen casing with a burnt end and powder inside. Bartelt was arrested.

In a Tenth Circuit case, U.S. v. Ladeaux, a Wyoming Highway Patrolman had stopped a car because the driver was not wearing a seat belt, had followed another car going below the speed limit too close, and had changed lanes without signaling. The driver’s nervousness gave the Patrolman a hunch that something might be in the vehicle and he called for canine backup. The canine handler asked that the windows be rolled up and the vents turned on, and during the sniff the dog alerted to the trunk of the vehicle. The subsequent search revealed 15 pounds of marijuana. Federal drug charges were filed and a motion to suppress was denied by the district court. The Tenth Circuit discussed the Constitutional issues but remanded for consideration of whether the procedure involving the windows and vents violated the Fourth Amendment. On remand, the district court granted Ladeaux’s motion to withdraw his motion to suppress so no further law was developed on the issue.

Justice Karmeier described Bartelt as a case of first impression because the Tenth Circuit, though faced with the same issue, had remanded in Ladeaux. The circuit court in Bartelt had granted the motion to suppress because the procedure had, in effect, allowed the officers to manipulate the air within the truck that would not otherwise have been subject to Max’s plain smell (though of course the dog may still have alerted). The appellate court had reversed because the dog had remained outside the truck and the defendant had no legitimate expectation of privacy in the potentially incriminating odors emanating from a lawfully stopped vehicle.

The Fourth Amendment prohibits unreasonable searches and seizures, but the court said that Bartelt had based her appeal on the procedure being an unreasonable search, not a seizure (though the issue of a seizure may have been raised in one sentence of the defendant’s appeal). The court found Illinois v. Caballes controlling because “the dog sniff in the present case was not a search subject to the fourth amendment because it did not ‘compromise any legitimate interest in privacy.’” (The internal quote was taken by Caballes from U.S. v. Jacobsen.)

The Illinois Supreme Court found an analogy in the luggage prepping procedure approved in a Fifth Circuit case, U.S. v. Viera, in which DEA agents pressed suitcases before a dog sniff to push some of the air out of them for the dog to smell. The dissent noted that luggage manipulation was not approved by the Supreme Court in Bond v. U.S. Bond, however, was not a canine case and the manipulation was performed to feel what was inside, which included a brick-like object. But see U.S. v. Gwinn (manipulation and removal of bag for dog sniff was impermissible search), not cited in Bartelt.

Three justices dissented, arguing that Fourth Amendment seizure issues were properly raised, though not fully argued, and that the analysis in Ladeaux involved seizure principles. The dissent argued:

“I agree with Ladeaux. Under the facts presented in both Ladeaux and in this appeal, the police went further than the officers in Caballes: they ordered defendant to assist them in facilitating the canine sniff by demanding that she turn the vehicle to auxiliary power, close the windows and place the blowers on high to force the air from the inside of her truck to the outside of the vehicle. There also is no question that the officers demanded defendant's compliance in the midst of what was an already coercive environment, wherein defendant was confronted by two officers and a narcotics canine, and was seated in a vehicle which was parked in front of two police squad cars arranged in a “T” formation. Because the officers' actions subsequent to the initial stop unquestionably “communicated to a reasonable person that [she] was not free to decline the officers' requests or otherwise terminate the encounter”…, I conclude that the officer's order to defendant to comply with the set-up procedure constituted an additional seizure. Accordingly, the reasonableness of this additional seizure must be assessed.”

It is troubling that a driver could be asked to take actions to aid in a sniff, and it appears that requiring such participation would be better analyzed as a seizure rather than as part of a search. Not doing so, however, may say more about defense counsel’s briefing of the matter than how the law should ultimately read. Unlike Jardines, which I'll be discussing soon, I don't think this one is ready for the U.S. Supreme Court.

Sources: Illinois v. Bartelt, 2011 WL 1049788 (Ill. 2011), aff’g 384 Ill.App.3d 1028, 323 Ill.Dec. 715, 894 N.E.2d 482 (Ct. App. 2008); U.S. v. Ladeaux, 454 F.3d 1107 (10th Cir. 2006); Illinois v. Caballes, 543 U.S. 405, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005); U.S. v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); U.S. v. Viera, 644 F.2d 509 (5th Cir. 1981); U.S. v. Gwinn, 191 F.3d 874 (8th Cir. 2000); regarding manipulation of bags, see also U.S. v. Nicholson, 144 F.3d 632 (10th Cir. 1998); Bond v. U.S., 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000); Jardines v. Florida, Docket No. SC08-2101 (April 14, 2011).

It has been argued that air released from a car’s ventilation system might carry enough scent of the driver out of a car as to leave a trail that a trailing dog could follow. Buchanek v. City of Victoria, 2009 WL 500564 (S.D.Tex. 2009).

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